Can I file a counter-claim and demand a jury trial?
Oppose the motion in writing with affidavits that provide at least controverted facts as set out by the opposition in its motion for summary judgemnt.
This is a question for your attorney. I do not mean to be rude, but if you are in litigation where either the opposition is schooled enough to pursue such a request of the courtor is represented by counsel and you are representing yourself, you are behaving in a foolish manner. If there is a lot of money at stake, hire an attorney.
The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.
Aren't you the plaintiff, the one who filed the suit in the first place? Counterclaims are filed by defendants. And typically plaintiffs demand a jury trial when they first bring the case.
A plaintiff who is entitled to summary judgment, because the undisputed material facts demonstrate medical malpractice proximately caused the damages in a specified amount, can file a motion for summary judgment himself.
Courts deny motions for summary judgment when the non-moving party demonstrates a dispute as to the material facts, a dispute which requires that a trial be held.
These are just general principles of law and shouldn't be taken as legal advice. I don't practice law in Florida and don't hold Florida licensure. If you need legal advice, please consult a lawyer who holds Florida licensure. That's not me.
You would need to show that at least one material fact is in dispute and therefore the case cannot be decided as a matter of law. Most likely you would need a medical expert to state a favorable opinion for your claims either going to duty, breach, causation and/or damages.
Hopefully you have an attorney because there are very strict procedural rules attached to filing summary judgment motions.
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I agree with the above attorneys, and advise you to retain a medical malpractice lawyer in your city, as you wouldn't want to try to litigate this without a lawyer.
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It sounds like the defendant(s) have filed a motion stating that even if all the facts you've alleged are true (not in dispute), you haven't made a case upon which relief is available under the law, and thus, summary judgment should be granted for the defense. If that is what has happened, you need much more help than can be provided here. Generally speaking, summary judgment cannot be granted if there are any facts in dispute. Demanding a jury trial won't help you because there's not going to be any trial if the motion is granted. Good luck!
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Please do not tell me your are trying your own medical malpractice case. If you have an attorney, you should be consulting him/her. If not, I strongly urge you to consult a top plaintiff's firm such as the Levin firm in Pensacola immediately. Medical malpractice cases are among the most complex and expensive in Florida. If without counsel, you literally have no chance against the skilled and experienced defense attorneys employed by the medical malpractice insurance companies to defend doctors. They will spend any amount of money required to defeat your case, no matters how clear and egregious the doctor's negligence is. They have no interest in justice, fairness, or concern for the injuries you have suffered. As far as your question, a summary judgment motion can be defeated by showing the existence of material facts still in dispute. Any competent plaintiff's attorney will easily defeat such a motion, especially in a tort case (negligence case). Summary judgment is greatly disfavored in Florida generally (because it robs the plaintiff of his/her constitutional right to trial by jury, access to the courts, etc.) and especially in tort cases. Your complaint should have already demanded a jury trial and stated your cause of action for medical malpractice. The plaintiff cannot file a counterclaim. Your suit is your claim. Good luck to you.
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